Justice Antonin Scalia’s death was impactful enough to change the ideological dynamics of the Court and spark an intense political debate over his replacement. Since his death, the US Senate has been stagnant on filling his chair, causing bitter controversy over the president’s power to fill vacancies. With the loss of an influence this great, the question remains: who will continue the legacy of Justice Scalia?
Justice Scalia contributed dedicated textualism, a dependable conservative vote, and a witty sense of humor in his 30 years on the Court. At the time of his appointment, Justice Scalia was joining an historically liberal bench. The addition of Justice Scalia and the promotion of Chief Justice Rehnquist transformed the liberal court to one with strong, vocal conservatives. Without Justice Scalia, the Court shifts slightly left, now generally featuring four liberals, three conservatives, and one swing vote. Clearly, this is problematic for conservatives, originalists, and textualists alike, as they have lost their strongest and most famous proponent and are faced with an increasingly activist Court.
On November 16, 2016, Justices Thomas and Alito spoke at the annual National Lawyer’s Convention hosted by the Federalist Society. Instead of speaking about the results of the election and its effects on the Court, both Justices encouraged the audience of federal judges and lawyers to continue Scalia’s work of keeping the branches of government in check. As Justice Alito put it, we should all be asking, “WWSD?” (what would Scalia do?). Both Justices clearly feel that Justice Scalia was a powerful force that cannot be easily supplanted, and that it would take the aggregate efforts of lawyers and judges from across the country to maintain the voice with which Scalia spoke for 30 years.
For Chief Justice Roberts and Justices Alito and Thomas, it is imperative that they demonstrate that a strong conservative base remains on the Court, even without Justice Scalia. Naturally, this base needs a leader that is prepared to pick up where Justice Scalia left off; the Supreme Court needs a passionate and reliable conservative and originalist. Who can conservatives turn to as a champion of the originalist cause?
The easy answer is Justice Clarence Thomas. Out of the other conservative Justices on the Court, Justice Thomas has the most consistent voting record and readily identifies himself as an originalist scholar. An appointee of President George H.W. Bush, Justice Thomas has spent 25 years as right-hand man to Justice Scalia. While their ideologies are not perfectly aligned, they agree on nearly all cases. As of 2014, Justices Scalia and Thomas ruled together on 91% of cases. With all of this in mind, the answer is obvious. Justice Thomas should be the ideal candidate to take the reins from Justice Scalia.
Justice Thomas has been hearing cases for 25 years and his time to bow out seems—to some—to be approaching, leaving the responsibilities of the leading conservative judicial voice up for grabs.
Others convincingly argue that Justice Thomas is not going to retire any time soon. According to Dean Reuter, Vice President and Director of Practice Groups at the Federalist Society, other spots on the Supreme Court are much closer to being vacant, such as Justices Ginsburg’s or Kennedy’s. Justice Thomas is only 68 years old, meaning he is closer to Justice Alito’s and Chief Justice Robert’s ages than he is to some of the older Justices.
In addition, now that Donald Trump has won the presidential election, Justice Thomas understands that whoever President-elect Trump appoints to fill vacant seats will need veteran conservative Justices that are familiar with the traditions of the Court to mentor the newcomers, a description Justice Thomas matches.
While his voting record will likely be conservative and follow originalist ideologies, he is not very vocal for the cause. In contrast to Justice Scalia, Justice Thomas is known to never ask questions or interrupt the lawyers arguing before the Court. Justice Thomas broke a decade long streak of silence on February 22, 2006 when he asked questions to the attorney in Voisine v. US (2016). Despite his legal accomplishments and stubborn conservatism, Justice Thomas’ lack of a bold voice and vision could turn away some conservatives.
However, others on the Court have supported Justice Scalia’s rulings and have helped push the originalist movement forward.
Justice Alito has labeled himself as an originalist, but he is not as dependable in his support of originalism as Justice Thomas. In 2010, during the oral arguments of Schwarzenegger v. Entertainment Merchants Association (2010), he used his questions towards the attorney to argue with Justice Scalia over whether originalism should be used as a basis for decision making. This case involved a California law regulating the violence in video games. While Justice Scalia approached the case from an originalist perspective, Justice Alito fired back informing the attorney that “what Justice Scalia wants to know is what James Madison thought about video games” and if “he enjoyed them.” He was clearly mocking Justice Scalia by saying that the Founders had no way of envisioning future constitutional issues, calling into question his own commitment to originalism.
Even so, Justice Alito is a consistent conservative vote, he votes with Justice Scalia on 86% of cases, and is very vocal during oral arguments. Since he has only spent ten years on the Court, Justice Alito has a long career ahead of him and can champion the movement for longer than Justice Thomas.
Chief Justice Roberts is the third candidate that can hold down the conservative base on the Court. He was appointed by George W. Bush in 2005, giving him plenty of time on the Court to distinguish himself as the new conservative leader. Similar to Justice Alito, Chief Justice Roberts is active in oral arguments, making him another vocal candidate. He does have one advantage over the others, though: his role as Chief Justice of the Supreme Court. His authority over the Court is unique to his position and gives him more opportunity to promote originalist ideology.
Unfortunately, Chief Justice Roberts will not commit to any particular constitutional interpretive ideology. “I do not have an overarching judicial philosophy that I bring to every case. I tend to look at the cases from the bottom up rather than the top down,” he said during his confirmation hearings. The most famous example of the Chief Justice breaking ideological lines is in National Federation of Independent Business v. Sebelius (2012), where the Chief Justice voted to uphold the constitutionality of the Affordable Care Act’s individual mandate through Congress’ taxing authority. This caused an outrage in conservative circles, as it proved that Chief Justice Roberts was not as originalist as conservatives had hoped. While he was appointed by a Republican president and has agreed with Justice Scalia on 90% of cases, his application of originalism in his decisions is too inconsistent for him to be considered a leader in originalist thought.
Justice Scalia left a profound impact on the Supreme Court and the legal field as a whole. His leadership maintained the waning originalist voice of the mid-twentieth century and his presence proved that originalism was not simply an idea of the past. One of the other conservative Justices will need to seize the throne to continue the originalist legacy that Justice Scalia established.